Barker & Ors, R v

Five defendants presently face trial in the Crown Court at Birmingham on 5 June 2017 in respect of three counts of conspiracy to commit fraud. The defendants Barker and Chudasama are indicted in all three counts. Chauhan, Ahmed and Croft are jointly indicted with them in separate counts. We intend no discourtesy or preconceived view of their behaviour by referring to them by their family name alone.

A preparatory hearing, designated as such pursuant to section 7(1) of the Criminal Justice Act 1987 by the trial judge, HHJ Carr, took place on 12 and 13 January 2017. This is a joint interlocutory appeal, pursuant to s 9(11) of the Criminal Justice Act 1987 with leave of the trial judge, against the ruling on 3 February 2017 dismissing the application for stay of proceedings as an abuse of process. If unsuccessful on this appeal, all seek permission to appeal the trial judge’s decision not to sever counts on the indictment to permit at least two separate trials.

The appellants and two others, Mummery and Corbett, were charged on a single count indictment with conspiracy to commit fraud. Their trial commenced on 12 September 2016 before HHJ Henderson. On 20 October 2016, at the close of the prosecution case, the trial judge heard submissions of no case to answer advanced on behalf of all appellants, not least on the basis that they had been wrongly charged with a single conspiracy whereas the evidence disclosed (if any criminality) several conspiracies. (R v Griffiths [1966] 1 QB 589 and R v Shillam [2013] EWCA Crim 160). HHJ Henderson refused the submissions of no case to answer and thereaftergranted a prosecution application to amend the indictment, the effect of which was that the single global conspiracy was split into three distinct conspiracies. HHJ Henderson had previously ruled that certain ‘expert’ valuation evidence was inadmissible and, concerned that the jury had previously been immersed in such evidence, discharged the jury. No evidence was subsequently offered against the co-accused Mummery and Corbett.

Mr Millington Q.C. represents Croft. Mr Farrell Q.C. representsAhmed. Mr Blackburn and Mr Isaacs appear for the Respondent. Written submissions have been received on behalf of the other appellants, but they are not physically represented on the appeal.

We dismiss the appeal and refuse permission to appeal for the reasons given below. The provisions of s.11 of the Criminal Justice Act 1987 apply to these proceedings. By virtue of those provisions, the reporting of these proceedings is prevented until the conclusion of the trial, save for specified basic facts such as the name of the accused and the offence. In the event, this case raises no new issue of law so as to lead us to conclude that it is appropriate to lift the restrictions, in whole or in part, so that the decision may be reported, albeit anonymously.

In summary, the prosecution case is that the appellants were involved in the sale of properties owned by Severn Trent Water (“STW”) at a dishonest undervalue to associates who then resold them at the proper market value. Barker, then employed by STW arranged for the sale of properties at undervalue to his co-conspirators. He submitted forged emails created by Chudasama, purportedly from estate agents containing low offers on the properties. Ahmed purchased eight of the properties which he sold at profit, including one which increased in value by £110,000 in less than two months.Croftpurchased one property, which he sold 14 months later at a profit of over £200,000. He paid £15,000 cash to Barker, Chudasama, Corbett and Mummery, which was invoiced under the cover of an unrelated piece of work. Chauhanacted as a middleman purchasing properties on behalf of the Pnaiser family. Mobile phone evidence demonstrates regular contact between Barker, Chudasama and Chauan. A ‘fake’ bidder used Chauhan’s email address. Chudasamapurchased two properties and sent emails in which he pretended to be prospective purchasers making offers.

The prosecution sought, and will seek, to establish the appellants’ fraudulent activity by reason of the significant difference in the properties’ values between the first and second sale prices; the speed of the first sales; pressure applied to agents to keep valuations low; the limited publicity and number of agents and buyers; and the business dealings and transactions of the appellants.

At the first trial, the prosecution relied upon retrospective valuation evidence of the properties to establish the undervalue of the first sales. It emerged during trial that the valuation evidence was procured by STW and not through the auspices of the police investigation, and that an STW employee conducting the internal investigation (Adam Tustain) had attempted to influence the valuations of the assessor and that the officer in the case, who was also the disclosure officer, used to work for STW.

Although he dismissed the submissions of ‘no case to answer’, HHJ Henderson having already retrospectively ruled that the valuation evidence was inadmissible, considered that this in itself necessitated that the jury be discharged. Prior to doing so, he acceded to a prosecution application to amend the indictment. The case was re-listed for trial before HHJ Carr, who directed a preparatory hearing, pursuant to section 7 of the Criminal Justice Act 1987, be listed as indicated above.

HHJ Carr’s judgment on the applications made to stay the proceedings as an abuse of the process of the court, and alternatively, on severance of the counts on the indictment, are contained in a typed document dated, and handed down on, 3 February 2017. Oral submissions were made on 12 and 13 January 2017 supplementing comprehensive skeleton arguments. In very summary form, the defendants argued that the Prosecution case had been revealed as fatally flawed by reason of the tainted valuation evidence, failure in disclosure, lack of adequate investigation of documents supplied in good faith and, significantly, the late amendment to the indictment.

During this appeal both Mr Millington QC and Mr Farrell QC have been at pains to emphasise in their oral submissions what they say is the paucity of the evidence against their respective clients, and have taken every opportunity to voice the defendant’s sense of outrage at the fact of their prosecution per se, let alone the manner in which the investigation had been conducted and, they would say, tainted. The particular defendants, and all but one other of the defendants, are men of good character. Both criticise the judge as eliding the first and second categories of case in which a stay of proceedings is warranted and submit that his judgment is inadequately reasoned, particularly in so far as his analysis of R v Piggott and Litwin [1999] 2 Cr App R 320, was concerned in relation to late amendment of indictment, and which decision he distinguished on the facts.

Mr Blackburn and Mr Isaacs assert that the exercise of judicial discretion to refuse stay of proceedings cannot be described as fundamentally flawed and was not ‘Wednesbury’ unreasonable. The reasoning in the judgment was ample.

Albeit that this is an appeal against the decision of HHJ Carr, we have necessarily had regard to the determinations of HHJ Henderson which founded the basis of the further application now under review.

In his judgment handed down on 24 October 2016, HHJ Henderson explained that he had, on 11 October, indicated that he would exclude the retrospective valuation evidence, that is, the evidence commissioned by STW in terms:

“…When I indicated I would exclude the retrospective valuation evidence I considered whether it was proper to discharge the jury on my own initiative. My provisional view at that point was that it was proper to continue, with there being no unfairness to the defendants. That is not to estop any application to discharge the jury at the close of the prosecution case, as I indicated… ”

He went on to summarise matters that bore adversely on the quality and status of the valuation evidence after cross examination of relevant witnesses and concluded that “my judgment at this point and in light of the difficulties with disclosure is that the probative value does not reach sufficient strength to make the evidence admissible.”

His judgment on 24 October then dealt with the submissions of no case to answer. Indicating that the defendants had all made ‘Galbraith’ submissions and “in addition” based on Griffiths and Shillam (see above), “the thrust of which was that this was not a single conspiracy but a number of conspiracies” he described how the prosecution applied to amend the indictment, “following receipt of Defence submissions, effectively, though not explicitly, conceding the point.”

HHJ Henderson noted that the legal point on the number of conspiracies had not been advanced by any defendant in his defence statement and should have been apparent at the outset, since the prosecution case, although weakened had not changed from the opening note prepared prior to trial. He addressed the Galbraith submissions in relation to each defendant and, noting some of the potential problems in the prosecution case, nevertheless concluded that there was evidence upon which a jury properly directed could convict each defendant.

Prior to doing so he dealt with the prosecution application to amend the indictment. Significantly, he said:

“In my judgment it was proper to deal with the application to amend first in principle. I say ‘in principle’ because it seems to me to be unfair were I to conclude that the prosecution had not made out a case to answer against a particular defendant on the facts he would be deprived of a not guilty verdict and should not have been prejudiced by the potentially conflicting effects of a Galbraith submission meeting an application to amend. ..

…

No one disputes that the Griffiths analysis better fits the facts of the case put forward by the Crown throughout this case. Indeed, it emerged following defence submissions to this effect. In that sense nothing has significantly changed in terms of the case except the label. To say that is not in any way to undervalue the importance of the correct charge: it is fundamental.

It is important to understand that were I to approve the proposed change in the indictment there would be no change at all in the substance of the case each defendant has to meet and has had to meet throughout the trial.

…

…topics of potential prejudice are in substance met and avoided were I to discharge this jury.

…

No counsel has been able to put before me any concrete example of how they would have presented their case differently on the facts…and in no real sense would their defence be different.

…this is a formal amendment rather than one of any real factual substance…

…it is not so much ‘moving the goalposts’ as painting them a slightly different shade of the same colour.

.I would have been likely to discharge this jury even if had I NOT allowed an amendment, by virtue of the exclusion of such a large amount of evidence and problems with disclosure… ”

That is, HHJ Henderson was explicit that (i) the application to amend the indictment was held in abeyance pending his hearing and determination of the ‘Galbraith’ submissions, and: (ii) his discharge of the jury was NOT related to the amendment of the indictment.

Thereafter he was invited, and did, consider applications to stay the proceedings by reason of alleged abuse of process. He identified correctly the relevant principles of law to be applied to the applications, demonstrably recognised and had regard to the many shortcomings in the prosecution case arising from incompetence, irregularities and deficiencies in the police investigation and the unsatisfactory instigation/ formulation and delivery of ‘expert’ valuation evidence. However, significantly, he explicitly exonerated two pivotal prosecution witnesses of bad faith. He dismissed the applications.

HHJ Carr was satisfied that the defendants were entitled to renew their applications for stay of the proceedings as an abuse of process before him. The judge identified the relevant legal principles to be extracted from R v Beckford [1996] 1 Cr App R 94 and R v Maxwell [2010] UKSC 48, and articulated the two categories of case in which the court has the power to stay proceedings, namely (i) where it will be impossible to give the accused a fair trial; and (ii) where it offends the court’s sense of justice and propriety to try the accused in the circumstances of the case. He identified what appeared to him to be the relevant passages in R v Piggott and Litwin (above) and distinguished it as follows:

“…In the Piggott case the prosecution withdrew substantive charges, tried the defendants on a conspiracy charge, and when the defence submitted that the conspiracy charge was flawed as the evidence demonstrated different conspiracies, the prosecution were allowed to revert to substantive charge. I agree with HHJ Henderson’s description of the amendment [ see paragraph 17 above] The position here is different to the position in Piggott”

Overall, he was satisfied that all issues raised could be accommodated in the trial process. There was nothing which had been identified which would undermine public confidence in the criminal justice system.

We agree that HHJ Carr, the designated judge for the second trial, was entitled to entertain a second application for stay of proceedings as an abuse of process in so far as there could be demonstrated to be any change in circumstances from the position as it existed in relation to the application for stay of proceedings before HHJ Henderson. If there was no change in circumstances then a second application before HHJ Carr would have amounted to an appeal by one circuit judge of another’s decision, which obviously would not be appropriate. We do not understand the case of R v Piggott and Litwin to decide otherwise. In that case the application for stay arose from the first trial judge’s decision as to amendment of the indictment. The judicial exercise of discretion would have regard to “some of the same factors” (emphasis added) pertinent to the amendment of an indictment but the application for stay was not confined to them.

In this case there had been further disclosure made by the prosecution, namely that the investigating police office who had been subject to criticism in the previous trial had previously worked for the complainant, albeit he had not had contact with the witnesses in this case when he had done so. We are also told that STW had apparently sought the valuations upon which the prosecution had relied, in connection with an insurance claim, successfully pursued, and therefore inferentially, with an interest in suggesting the exaggerated value of the properties.

We do, however, question HHJ Carr’s grant of permission to appeal his own decision on the application for stay of proceedings. He is patently not conceding that he exercised his discretion on a flawed basis and even if his appraisal of R v Piggott and Litwin strictly speaking concerned “a question of law”, we endorse that part of the judgment of the court in R v VJA [2010] EWCA Crim 2742 at paragraph 43:

“…even if there was a question of law that comes within section 9(3) (c) of the 1987 Act and so this Court has jurisdiction to grant leave to appeal pursuant to section 9(11), there remains a further exercise of judgment that this court must make before it decides whether or not to do so. The right to have an interlocutory appeal remains an exceptional right in Crown Court trials… (Underlining provided)

However, for pragmatic reasons, we have not heard argument as to whether it is possible to set aside the grant of permission and instead have decided the substantive appeal.

Whether analysis of the skeleton arguments below, or before this court, clearly reveal the basis of all the applications for stay of proceedings to have been directed at the second category of case, Mr Millington QC and Mr Farrell QC unequivocally said their oral submissions to us on appeal were intended to do so. However, they did not confine their submissions to what they asserted were the relevant and applicable principles to be derived from R v Piggott and Litwin; there have been renewed implicit and/or explicit allegations of mala fides against prosecution witnesses, Mr Farrell QC seeming at times to suggest that HHJ Henderson’s written judgment did not accurately reflect that pronounced in court, but declining our invitation to seek a transcript of the proceedings which could reveal the differences he contended for. Both counsel took the opportunity to emphasise the appellants’ reported sense of righteous indignation at the fact of the prosecution. In reality, the issue before us is whether or not the analysis of Piggott and Litwin contended for by the appellants is right. That is, does a late amendment of the indictment and subsequent discharge of the jury mean that a second trial will be an abuse of process of court.

For the avoidance of doubt, in so far as any counsel may have attempted to advance the proposition that a fair trial was now impossible for their clients, we firmly reject the same. There is simply no issue revealed in any of the materials or written submissions we have seen that cannot be dealt with fully and fairly to the defendants in the trial process. This includes the information disclosed since the first trial as indicated in paragraph 22 above. Specifically, in light of his oral submissions and assurance to us, we would be entitled to consider abandoned that ground of appeal drafted on behalf of Croft to the effect that the conclusion that the appellants could have a fair trial did not have regard to the impossibility of the appellants’ position in relation to exploring defects in the investigation that had become apparent during the first trial. If not, we reject it. It is illogical to propose that, unsafe evidence having been ruled inadmissible, the fact that defence counsel would then have to ‘change tack’ and attack evidence that the jury might safely rely upon means that it is impossible for a defendant to have a fair trial.

It is sufficient for the purposes of this judgment to adopt the summary of the facts of Piggott summarised by HHJ Carr as indicated in paragraph 20 above. We reject the submissions that the factual context of that case and this are identical, or as close to being so as to make no difference. Beyond the fact that the defendants in Piggott and Litwin were initially tried for conspiracy and there was a late amendment to the indictment, we find little to mirror the facts of the instant case.

The court in Piggott reviewed the authorities relating to (i) late amendments to the indictment, which themselves differentiate between those of substance and form, and (ii) second trials mounted on the same evidence but with different offences charged. It concluded on the facts of the particular case that

“ to allow amendments …in this case after a trial lasting some 10 days and which could only be proceeded with by ordering a retrial which would traverse the same ground as the first trial but on counts which the appellants were entitled to think had been withdrawn, did cause an injustice to the defendants…[and] should not have been allowed.

….some of the same factors were relevant in considering whether the amendments should be allowed as were relevant to considering whether the second trial was an abuse of process. For the reasons we have already given in relation to the amendment, we are of the view that the correct exercise of his jurisdiction at that stage would have been to halt that second trial…”

We do not interpret R v Piggott and Litwin to promulgate any new principle of law. An application to amend the indictment must be scrutinised with proportionate care at different stages of the proceedings. Applications for amendments of substance, made at the conclusion of the prosecution case, with the obvious intent to thwart a meritorious argument of no case to answer, are unlikely to succeed at first instance or otherwise be maintained on appeal. That the amendment is one of substance may be indicated by the necessity to discharge the jury to ensure the defendant receives a fair trial, for even if the second trial proceeds on the same evidence as the first it will necessitate a change in the nature of the defence deployed. In certain circumstances, if such amendment be allowed, a subsequent challenge to the integrity of proceedings, as in the case of Piggott, may likely succeed. This will be fact specific.

In our minds, the only issue in this appeal was whether the late amendment to the indictment was of substance and made and allowed with the intent to defeat the submissions of no case to answer. If it was then the due process of law was objectively compromised and, in this case when added to the deficiencies in investigation and failure of disclosure by the prosecution, as found by HHJ Henderson, would certainly have led us to conclude that a second trial would amount to an abuse of process and that no other court could reasonably have arrived at a different conclusion.

Without full access to the evidence on the papers or at trial we can make no certain assessment as to whether we regard the amendment to the indictment was or was not necessary, but we are not persuaded that the amendment to the indictment to plead three conspiracies in place of one, was one of substance on the facts of this case. We are corroborated, not informed, in this view on the basis that HHJ Henderson was explicit that he would not have discharged the jury on the basis of the amendment of the indictment. Further, we are satisfied that the judgment of HHJ Henderson clearly reflects the chronological procedure he adopted as indicated in his written judgment, confirmed as it is in an e mail he sent to all Counsel upon receipt of written submissions, the same produced at our request, namely:

“ First: it seems [provisionally] to me that the proper order to decide the applications is:

1.

No case. Should I be of the view that a D has no case to answer I should direct a verdict rather than discharge or stay.

2.

Abuse: again because that could finally resolve the case for a defendant; and finally

3.

Discharge jury.

I’ll hear submissions if anyone disagrees with that order.

Secondly: it seems to me [again VERY provisionally] That there is some force in the Lime fraud point, speaking as the judge in Shillam and Read & Robb I am sensitive to the point.”

HHJ Carr agreed HHJ Henderson’s description of the amendment. He found nothing in the new material that changed that part of the landscape. There is nothing in any of the submissions, written or oral, that satisfies us that he exercised his discretion wrongly. His decision is not outside the reasonable scope.

We regard his reference to the first limb of Connelly v DPP to be warranted by reason of the information that had come to light since the first trial, let alone what we suspect may have been a re-run of the arguments before HJ Henderson, as there was attempted before us. In any event, the two categories of ‘abuse of process’ are not water tight. On occasions, the two may overlap. We discern no confusion on his part to call his determination into question.

Finally, we reject the criticisms made that HHJ Carr’s judgment is inadequately reasoned. Sir James Munby, the President’s judgment in Re F (Children) [2016] EWCA Civ 546, paras 22, is equally pertinent in the criminal jurisdiction, namely:

“22

Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228, para 29, there is no need for the judge to “incant mechanically” passages from the authorities, the evidence or the submissions, as if he were “a pilot going through the pre-flight checklist.”

We refuse permission to appeal HHJ Carr’s refusal to sever the indictment. It was not disputed that the counts on the indictment were validly joined. The Judge did not consider that any of the accused would be prejudiced or embarrassed in their defence (applying Ludlow v Metropolitan Police Commissioner [1971] AC 20), and there was no special feature to the case that justified severance. He observed that juries are routinely directed to give separate consideration to defendants and counts and to the evidence that applies to each. The Judge added that he could not see any other reason as to why it would be desirable to direct separate trials. We agree. Any question of cross-admissibility of evidence is a matter for the trial process, and ultimately, appropriate jury direction.